Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 571 (9th Cir. 1988)

Armando GARDIM, Plaintiff and Appellant,v.M/V HORNET III, Her Engines, Tackle, Furniture and Apparel,Hornet III Joint Venture, and Roland Virissimo,Defendants and Appellees.

No. 86-6652.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 1988.Decided June 30, 1988.

Before HUG, FLETCHER, and FARRIS, Circuit Judges.


During opening arguments, the magistrate ruled that Gardim could not introduce evidence on his maintenance and cure claim. Gardim's attorney acknowledged that maintenance and cure had been paid shortly before trial, but he argued that the defendants' delay in payment aggravated Gardim's injuries, thus entitling Gardim to additional damages. The magistrate ruled that Gardim could not introduce evidence on this issue because it was outside the scope of the triable issues listed in the pretrial conference order. Gardim's attorney then attempted to make an offer of proof, and the magistrate cut him off immediately and told him to get on with the case.

We recognize that the magistrate should not have cut off the offer of proof in this peremptory fashion, but Gardim had numerous means to remedy the problem during the course of the thirteen-day trial. He should have pursued his right to make a full offer of proof, or moved to amend the pretrial conference order. Gardim did nothing. His failure to make a proper record for appeal precludes review of the magistrate's decision to exclude the evidence.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3